UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class JOSEPH R. SCHER

United States Air Force

ACM S32329

3 November 2016

Sentence adjudged 5 June 2015 by SPCM convened at Ramstein Air Base, 

Federal Republic of Germany. Military Judge: Donald R. Eller, Jr. (sitting 

alone).

Approved Sentence: Bad-conduct discharge, confinement for 45 days, and 

reduction to E-1.

Appellate Counsel for Appellant: Captain Patricia Encarnación Miranda.

Appellate Counsel for the United States: Major Mary Ellen Payne; Gerald R. 

Bruce, Esquire; and Morgan L. Herrell (civilian intern).

1

Before

DREW, J. BROWN, and MINK

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

DREW, Chief Judge:

At a special court-martial composed of a military judge sitting alone, Appellant was 

convicted, in accordance with his pleas, of two specifications of wrongful use of 3,4-

methylenedioxymethamphetamine (“ecstasy”), a Schedule I controlled substance, and one 

specification of wrongful use of marijuana, all in violation of Article 112a, UCMJ, 10 

U.S.C. § 912a. The court sentenced Appellant to a bad-conduct discharge, confinement 

for 75 days, and reduction to the grade E-1. Pursuant to Appellant’s pretrial agreement, 

 

1 Ms. Herrell was a law student extern with the Air Force Legal Operations Agency and was at all times supervised 

by attorneys admitted to practice before this court during her participation. 
2 ACM S32329

the convening authority approved confinement for only 45 days, but otherwise approved 

the sentence as adjudged.

Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant 

contends that the military judge erred in admitting Prosecution Exhibit 7, a video of some 

other Airmen using ecstasy in Appellant’s on-base dormitory room, and that Appellant 

received illegal pretrial punishment. Finding no error materially prejudicial to a substantial 

right of Appellant, we affirm the findings and the sentence.

Background

In early February of 2015, Appellant, who was assigned to Ramstein Air Base in 

the Federal Republic of Germany, traveled to Amsterdam, the Netherlands, with some

fellow enlisted Airmen. While in Amsterdam, Appellant wrongfully used marijuana and

ecstasy with several of the Airmen. On 27 February 2015, in his dorm room on Ramstein 

Air Base, Appellant again wrongfully used ecstasy with some of the same Airmen and 

others. In mid-March of 2015, Appellant once again wrongfully used ecstasy, this time in 

the dorm room of another Airman on Ramstein Air Base. 

Admission of Video during Presentencing

Appellant asserts that the admission of a video of other Airmen using drugs in his 

room on the evening that he too used drugs in his room was not properly admissible in 

sentencing.

Unbeknownst to Appellant at the time, one of his fellow Airmen was a confidential 

informant. That informant secretly video recorded some of Appellant’s fellow Airmen 

using ecstasy in Appellant’s dorm room on 27 February, the same evening that he used 

ecstasy in his room in their presence. However, the recording did not depict Appellant or 

his drug use.

At trial, pursuant to a pretrial agreement, Appellant entered a provident guilty plea 

to all specifications. In addition to describing his drug use in Amsterdam in early February 

and in another Airman’s dorm room in mid-March, Appellant described for the military 

judge his 27 February wrongful use of ecstasy in his own dorm room in the presence of 

other Airmen. 

Appellant voluntarily entered into a stipulation of fact, Prosecution Exhibit 1, 

wherein he expressly admitted that certain facts and matters “are true and admissible for 

all purposes in the case of United States v. Airman First Class Joseph R. Scher.” Paragraph 

seven of the stipulation contained the following:

On 27 February 2015, A1C [BN], A1C [TW], 86th Communications Squadron, A1C [JG], 86th Aircraft Maintenance 

Squadron, A1C [RS], 786th Force Support Squadron, and 
3 ACM S32329

A1C [KP] came to [Appellant’s] dormitory room on Ramstein 

AB, Germany. While there, [Appellant] witnessed others 

crushing up ecstasy pills and MDMA on a dresser, and snorting 

the drugs through a monetary bill of unknown denomination. 

[Appellant] then snorted approximately two lines of crushed 

ecstasy through the bill.

As part of discussing with the military judge the potential uses of the stipulation of 

fact, Appellant told the military judge that everything in it was true and he believed it was 

in his best interest to enter into the stipulation. Without objection from the Defense, the 

military judge ultimately admitted the stipulation into evidence. During the providence

inquiry, the military judge and Appellant referenced paragraph seven of the stipulation of 

fact when discussing the facts and circumstances of Appellant’s wrongful drug use.

After the military judge accepted the Appellant’s plea and found him guilty, the 

Prosecution presented the testimony of A1C KP during presentencing. Among other 

things, and without objection from the Defense, A1C KP testified about being present in 

Appellant’s dorm room on 27 February along with several other Airmen and witnessing 

several of them using ecstasy there. At that point, the assistant trial counsel offered 

Prosecution Exhibit 7, the video recorded by the confidential informant. 

Appellant’s trial defense counsel objected to the video on the basis that Appellant 

was not depicted in the video and that the video does not qualify as evidence in aggravation 

under Rule for Courts-Martial (R.C.M.) 1001(b)(4). After viewing the video and allowing 

the Prosecution to elicit testimony about it from A1C KP, the military judge ruled that the 

Prosecution had adequately established a foundation, authenticated Prosecution Exhibit 7,

and, in conjunction with Appellant’s statements during the plea providence inquiry and 

paragraph seven of the stipulation of fact, Prosecution Exhibit 7 was relevant and 

admissible during presentencing. The military judge stated:

The court can keep this in its appropriate context to the extent 

[Appellant] is not depicted on here is fine. I am able to 

consider the situation, the circumstances [Appellant] has 

described and it does provide some context to what was going 

on in the room. To that end I can give it the appropriate weight 

that I think it is due, but it is proper under RCM 1001 as a 

matter in aggravation, being facts and circumstances of the 

offense.

The trial counsel may present evidence as to any aggravating circumstances directly 

relating to or resulting from the offenses of which the accused has been found guilty. This 

evidence includes evidence of the impact of Appellant’s offenses on the mission, 

discipline, or efficiency of the command. R.C.M. 1001(b)(4). In addition, the courtmartial may consider evidence properly introduced on the merits before findings, including 
4 ACM S32329

evidence of other offenses or acts of misconduct even if introduced for a limited purpose. 

R.C.M. 1001(f). 

Aggravation evidence is often presented through a stipulation of fact, but may also 

be presented through other means, such as witness testimony or the accused’s own 

statements. United States v. Gogas, 55 M.J. 521, 523 (A.F. Ct. Crim. App. 2001). The 

video, supported by the witness testimony, the stipulation of fact, and Appellant’s 

statements during the providence inquiry, is another example of the proper means of 

introducing aggravation evidence. 

We review a military judge’s ruling on the admissibility of sentencing evidence for 

an abuse of discretion. United States v. Carter, 74 M.J. 204, 206 (C.A.A.F. 2015). The 

military judge is given wide discretion. Id. at 207. 

It is an aggravating circumstance of Appellant’s wrongful drug use that he did so in 

his military dorm room and made his dorm room available to facilitate illegal drug use by

other military members. This fact had already been admitted by Appellant in paragraph 

seven of the stipulation of fact and during his providence inquiry. The video merely more 

accurately portrayed these aggravating circumstances. The fact that Appellant was not 

depicted on the video is not dispositive of its relevance or admissibility. It displayed how

Appellant had transformed his government-issued dorm room into an illegal drug den for 

fellow Airmen and was evidence of the precise conditions of his own drug use moments 

later. 

Regardless, the military judge stated that he could give the video its appropriate 

weight, and reviewing the record, we have no reason to believe otherwise. “Military judges 

are presumed to know the law and to follow it absent clear evidence to the contrary.” 

United States v. Rapert, 75 M.J. 164, 170 (C.A.A.F. 2016) (quoting United States v. 

Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007)). As we are convinced the military judge did 

not consider this evidence for any improper purpose and the events depicted in the video 

were already before the military judge as part of the stipulation of fact and providence

inquiry, a material right of Appellant was not prejudiced by the admission of the video 

during presentencing.

Pretrial Punishment

Appellant next argues, for the first time on appeal, that he was subjected to illegal 

pretrial punishment. To support this assertion, he argues that he was denied leave prior to 

trial and that, after his security clearance was revoked, he and four other unidentified 

military members performed “cleaning jobs.”

No person, while being held for trial, may be subjected to 

punishment or penalty other than arrest or confinement upon 
5 ACM S32329

the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the 

circumstances required to insure his presence, but he may be 

subjected to minor punishment during that period for 

infractions of discipline.

Article 13, UCMJ, 10 U.S.C. § 813.

The issue of unlawful pretrial punishment is a mixed question of law and fact. The 

question of whether Appellant is entitled to sentence credit for an Article 13, UCMJ, 

violation is reviewed de novo. United States v. Williams, 68 M.J. 252, 256 (C.A.A.F. 

2010). However, failure at trial to seek sentence relief for violations of Article 13 results 

in a forfeiture of that issue on appeal, absent plain error. United States v. Inong, 58 M.J. 

460, 465 (C.A.A.F. 2003).2

 

Not only did Appellant fail to seek sentence relief from the military judge at trial, 

subjecting himself to possible forfeiture, Appellant affirmatively waived the issue in order 

to benefit from a pretrial agreement with the convening authority. In paragraph 2(e) of his 

pretrial agreement, Appellant agreed to “[w]aive all motions which may be waived under 

the Rules for Courts-Martial.” An Article 13 unlawful pretrial punishment motion is one 

of those matters which may properly be waived in a pretrial agreement. United States v. 

McFadyen, 51 M.J. 289, 291 (C.A.A.F. 1999). The military judge spent more than two 

pages in the record of trial discussing with Appellant and his trial defense counsel the 

meaning and implications of the waiver in his pretrial agreement, to include the fact that 

the waiver was preventing the military judge and this court from reviewing any and all 

waived motions. Finally, the military judge specifically asked Appellant and trial defense 

counsel whether either thought Appellant had been subject to pretrial punishment. 

Consistent with his counsel’s response, Appellant responded “No, sir.” 

Appellant asks this this court to give him relief for what he now claims is unlawful 

pretrial punishment. We decline to do so. The military judge’s thorough discussion with 

Appellant about the issue of waiver and whether he had in fact been subjected to pretrial 

punishment expressly waived the issue at trial and on appeal. Appellant intentionally 

abandoned a known right and therefore extinguished the opportunity to raise this issue on 

appeal. Even if we chose not to apply waiver, nothing in Appellant’s declaration claiming 

pretrial punishment compels a different result. 

 

2 Although Inong speaks of waiver absent plain error, we believe this is more accurately described as forfeiture absent 

plain error. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009).
6 ACM S32329

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 

66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

sentence are AFFIRMED.

FOR THE COURT

KURT J. BRUBAKER

Clerk of Court